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Soules v. State of Connecticut, Department of Emergency Services and Public Protection

United States Court of Appeals, Second Circuit

February 8, 2018

Gary Soules, Plaintiff-Appellant,
v.
State of Connecticut, Department of Emergency Services and Public Protection, State of Connecticut, and Town of Oxford, Defendants-Appellees.

          Argued: December 1, 2017

         Gary Soules appeals from the judgment of the United States District Court for the District of Connecticut (Bryant, J.) dismissing his complaint sua sponte on the ground of res judicata. Soules' first action alleged harassment, discrimination, and retaliation by defendants on the basis of his disabilities, military status, and certain protected activities. After dismissal, Soules brought this second action alleging a nearly identical set of facts and claims, adding a single further allegation: that defendants terminated his employment in retaliation for filing the first action.

         We conclude that Soules effectively amended his complaint via the motion papers in the first action to add a retaliatory termination claim. Accordingly, Soules could have raised his termination claim in the first action and did, and thus res judicata precludes Soules from litigating the claim in this subsequent case. We also reject Soules' argument that the requirement to exhaust administrative remedies prevented him from raising the termination claim in the first action; the claim was "reasonably related" to the original administrative charge, and therefore Soules would not have been barred from bringing the claim in the first action. Furthermore, res judicata applies to claims pending review in administrative proceedings. The requirement to exhaust administrative remedies therefore does not alter our conclusion that res judicata precludes the second action. Affirmed.

          William S. Palmieri, New Haven, Connecticut, for Plaintiff-Appellant.

          James N. Tallberg (Dennis M. Durao, on the brief), Karsten & Tallberg, LLC, Rocky Hill, Connecticut, for Defendant-Appellee Town of Oxford.

          Colleen B. Valentine, Assistant Attorney General (Ann E. Lynch, Assistant Attorney General, on the brief), Hartford, Connecticut, for George Jepsen, Attorney General of the State of Connecticut, for Defendants- Appellees State of Connecticut, Department of Emergency and Services and Public Protection, State of Connecticut.

          Before: Jacobs, Raggi, and Droney, Circuit Judges.

          Dennis Jacobs, Circuit Judge.

         Gary Soules appeals from the judgment of the United States District Court for the District of Connecticut (Bryant, J.) dismissing his complaint sua sponte on the ground of res judicata. Soules' first lawsuit was dismissed. See Soules v. Connecticut, No. 3:14-CV-1045 (VLB), 2015 WL 5797014 (D. Conn. Sept. 30, 2015) ("Soules I"). The dismissal was affirmed in part and vacated in part (on grounds not relevant to this appeal) by summary order. See Soules v. Town of Oxford, 669 Fed.Appx. 54 (2d Cir. 2016). Soules brought the present case after the dismissal of the first case, alleging nearly identical claims with a single additional one: that defendants terminated his employment in retaliation for filing Soules I (the "termination claim").

         On appeal, Soules argues that res judicata does not bar his termination claim because the termination happened after he filed the complaint in Soules I. However, Soules was fired while the motions to dismiss were pending and he repeatedly raised the termination issue as evidence that his claims were sufficiently pleaded. These filings indicate that Soules implicitly sought to amend his pleadings, and that the district court in effect permitted him to do so. Accordingly, we conclude that the termination claim could have been raised in the prior action and was, and that res judicata precludes Soules from asserting the claim in this subsequent action.

         Soules also argues that he could not have asserted claims based on his termination because he was required to exhaust administrative remedies. However, the termination claim was "reasonably related" to the original administrative charge; so the exhaustion requirement would not have foreclosed raising the claim added in Soules I. In any event, the res judicata doctrine applies in administrative proceedings. The requirement to exhaust administrative remedies thus does not disturb our holding that the termination claim is barred by res judicata.

         BACKGROUND

         Soules, who is assumed to suffer from post-traumatic stress disorder, alleges that, while he was a police officer in the Town of Oxford, he was "subjected to an ongoing pattern of harassment, discrimination, retaliation and disparate treatment based upon his [mental and physical] disabilities or perceived disabilities, his military service and in retaliation for his protected complaints." Joint App'x 40, 42 (Am. Compl. ¶¶ 2, 17). Soules' supervisor, Sergeant Daniel Semosky, allegedly swore at Soules and said he was "unhappy" with Soules' return to work after a combat tour; and employees of the Town of Oxford and State Police allegedly physically intimidated him. Id. at 43-44 (Am. Compl. ¶¶ 23-25). Soules protested in writing to the Department of Emergency Services and Public Protection ("DESPP"), and made that grievance known to other officers.

         The complaint alleges that First Selectman George Temple instructed Soules to cut back enforcement of drunk driving laws, that Soules refused, and that disciplinary action ensued. Defendants allegedly solicited false complaints about Soules, created false ...


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